(dissenting). I concur with the majority in so far as the dismissal of the appeal from the order denying reargument is concerned. I dissent, however, in that phase whi'ch has to do with the construction of the decedent’s will, and vote to modify on the law and facts the provisions of the decree under the heading “ Pound, Adjudged and Determined” (I) by substituting. “ five-sevenths ” for “ four-sevenths ” in the decretal paragraphs thereof numbered “ 3 ” 'and “ 4;” and (II) by substituting “ two-sevenths ” for “ three-sevenths ” in the decretal paragraph thereof numbered “ 5.” As thus modified, and in so far as appealed from, I vote to affirm the decree, with costs to all parties filing separate briefs, payable out of the estate.
*591In my opinion the testator died intestate as to the remainder of the share of the residue of which Ida E. Hume was given the income for life by the provisions of paragraph “ Seventh ” of the will. It was testator’s manifest intention that- there should be separate trusts for Ida E. Hume as distinguished from a single one for her benefit. One of these trusts was in the so-called fourth part of the residue and the others severally in the shares of the residue of the three other residuary beneficiaries, Elizabeth Lyon, Sarah J. Cogs-well and Esther A. Lyon, to the income of each of which shares Ida E. Hume became entitled for her life because of the prior death of the given beneficiary, which death in each case occurred also before the death of the testator.
The clause of the will in which the interpolation of the word “ the ” is made by the majority ruling reads, with such interpolation indicated, as follows:
“ Upon the death of Mrs. Elizabeth Lyon, Mrs. Sarah J. Cogswell and Mrs. Esther A. Lyon, or any of them, the principal of the trust so set apart for each or any of them shall be held by my said Executor in [the] trust for Mrs. Ida E. Hume, and the income derived therefrom shall be paid to her during her life, and upon her death the principal thereof, together with all accumulated and accrued interest, shall be paid to the children or descendants of any deceased child or children of Mrs. Ida E. Hume when they severally arrive at the age of twenty-one years. The income, in the meantime, shall be used by their Testamentary Guardian hereinafter appointed, for their support, maintenance and education.”
The interpolation of the word “ the,” as above, in the language which disposes of the principal of the trusts respectively for the benefit of Elizabeth Lyon, Sarah J. Cogswell and Esther A. Lyon, is unwarranted. It changes the plain meaning of an unambiguous clause of the will and makes it refer to an enlarged single trust for the benefit of Mrs. Hume, which single trust was never contemplated by the testator and is wholly unwarranted by the express terms of the will and the implications thereof. In effect this interpolation by judicial fiat makes a new will for the testator, contrary to law. (Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 92; Stewart v. Stewart, 205 App. Div. 587, 589; First Nat. Bank & Trust Co. v. Palmer, 261 N. Y. 13, 17; Dreyer v. Reisman, 202 id. 476, 479, 480.) This is not a case where the context of the clause in question requires the interpolation. (Cf. Matter of Barr, 233 App. Div. 290.) “ We transpose words or names or clauses only for the purpose of giving grammatical expression to an intention that otherwise appears from the instrument itself. The courts cannot rewrite instruments; their function is confined to construction. None the *592less, when an intention clearly appears on the face of the instrument, the courts should not defeat that intention by any rules of grammar or rhetoric.” (First Nat. Bank & Trust Co. v. Palmer, supra.) “ Courts have no power * * * to construct a will where none has in fact been made, nor to import into a will new provisions which are designed to create a testamentary disposition which is neither expressed nor necessarily to be implied.” (Dreyer v. Reisman, supra, at p. 480.) Here no intention appears, by implication, to give the remainder of the Ida E. Hume share, concededly not expressly disposed of in the will, to the appellants upon her death.
The appellants, saving their point as to the construction for which they contend, assert that the surrogate erred in allocating only four-sevenths of the whole residue of $71,995.47 as of November 21, 1922, when the trusts became effective, to the three trusts other than the one for Mrs. Hume, and that he should have allocated five-sevenths to those trusts, with the result that the appellants should have received $10,285.06, the value of a seventh, in addition to the $41,140.27 which they were awarded by the surrogate’s decree. Appellants assert that the formula for determining the value of the property in these trusts is to take the recognized and customary rate of income derivable from a trust and to capitalize the property on that income; also that the customary rate is four per cent. They rely upon several authorities, chief of which is Matter of Schuster (257 App. Div. 55), in which we fixed that rate as representing the amount of income which presumably would have been earned by a trust if the real property had been sold as directed by the testator in August of 1924. That would apply, in my opinion, to the trusts which became effective in November, 1922. I am of opinion, therefore, that the contention of the appellants in relation to such allocation should be sustained, with the result above indicated.
Hagarty, J., concurs with Taylor, J.
Decree of the Westchester County Surrogate’s Court, in so far as appealed from, reversed on the law and the facts, with costs to each party filing a brief, payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a new decree containing, among others, a provision that the entire residuary estate was validly disposed of by. the will and passed to the appellants upon the death of Ida E. Hume.
Appeal from the order denying reargument dismissed, without costs.